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The Ontario Superior Court recently overturned an arbitrator’s decision which said that the City of Toronto had erred by transferring a disabled employee from full-time to part-time status, affecting his benefits. The arbitrator held that the employer’s decision had resulted in a breach of the City’s duty to accommodate an employee with a disability. The City appealed the decision in court and was successful.

Background Facts

The respondent had been employed with the City of Toronto on a full-time basis for eight years. When the employee’s disabilities prevented him from working a full week, he reduced his hours to a four-day week. At the time, he was permitted to use a sick day for the day each week that he wasn’t working, until his sick days were exhausted, after which he would not be paid for the days he wasn’t able to work.

In 2009, the City and its employees entered into a new collective agreement, which offered a new Illness or Injury Plan for existing employees. It would allow any employee who joined the plan to receive pay for up to 26 weeks per year when the employee was away for health reasons. The employee, in this case, chose to opt into the plan. From that point on, he was able to work four days per week but be paid for five, under the new plan.

The following year, the employee needed to reduce his working hours further so that he was only working three days per week. He remained in the full-time collective bargaining group. A few years later, the City asked the employee to provide medical documentation as to whether the accommodation was a permanent one. He did provide that evidence, with his doctor confirming that he would not be in a position to resume working full-time hours in the future.

In 2016, just before the negotiation of a new collective agreement, the City notified the union that it would be discontinuing its practice of allowing part-time employees to remain in the full-time bargaining unit if there was no reasonable expectation they would return to full-time work. Employees in this category were given a two-year grace period during which they remained in the full-time unit, before being transferred to the part-time unit. The part-time unit benefit coverage was less, requiring the respondent to pay a pro-rated portion of his extended health and dental care. His vacation days, sick days and pensionable service were also pro-rated.

The Arbitration

After examining the circumstances, the arbitrator noted that the transfer of the grievor to the part-time unit was an administrative act within the scope of the City’s management rights. Further, the arbitrator found the City had met its duty of accommodation in allowing the respondent to reduce his hours to part-time. However, the arbitrator did find that the City was not permitted to alter the existing accommodation without demonstrating either a change in circumstances or a significant hardship. The City had not established either, so the arbitrator found that the change was a violation of s. 17 of the Ontario Human Rights Code (the “Code”)

The Appeal

The Court found that the arbitrator’s decision had been unreasonable. The Court held that the change to the part-time bargaining unit was due to the hours that the employee was able to work, and not to his disability, and therefore the change was not in violation of the Code. This is positive news for employers, in both the labour and employment sector. Employees must be able to contribute the work necessary in order to accumulate the associated benefits. however, as always when navigating employee rights and accommodations, it is advised that employers seek legal advice before making changes to existing accommodations to ensure that they are not overstepping.

At Baker & Company, we take the time to meet with you and understand your unique needs in order to offer solutions to the diverse problems you may encounter in the workplace. The highly skilled Toronto employment lawyers at Baker & Company can review your employment policies and ensure that you are meeting your legal obligations while addressing and mitigating risk. Protect yourself, your workplace, and your employees. We rely on our broad base of experience and expertise to provide clear, pragmatic legal advice, and representation in litigation.  Call us at 416-777-0100 or contact us online for a consultation.

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